Posts Tagged ‘Taker of usury?’

Riba (usury), prohibition vs dubious easements! 

March 13, 2020

“Those who devour riba will stand, on judgment day, like those driven to madness by a touch of the evil. That is because they say “trade is just like usury”. But Allah has permitted trade and forbidden usury. Whosoever, after receiving a warning from their lord, refrains may keep their previous gains, and their case is left to Allah. As for those who persist [in devouring riba], their abode will be hellfire. They will remain there forever. (Q, 2:275)

 

PREFACE.

In my view, in the above verse and other verses on the topic, there is no ambiguity; which may lead one to any confusion, that business transactions within the parameters delineated by the Prophet, are unequivocally permissible (except recent innovative/circumventive dubious transactions). Riba/usury, however, in whatever type or form (discussed in detail in the proceeding paras) is unequivocally forbidden. I strongly disagree with the currently in vogue innovative-easements; justifying the riba/interest drenched transactions, under the guise of “lease-purchase and loaning/financing in the name of murabaha”. 

I also disagree with the blatantly adduced assumption that “taking interest is forbidden but not giving” It contravenes an implied Qura’anic injunction; of not giving an increased amount on loaned money (Q, 30:39). This assumption is not only illogical but also negates the “duality of creation” (rule), affirmed in the Holy Qura’an.

DUALITY OCREATION

[and from all of the fruits He made therein two mates; He causes the night to cover the day. Indeed, in that are signs for a people who give thought. Q,13: 3]

[…and from all of the fruits He made therein two mates; He causes the night to cover the day. Indeed, in that are signs for a people who give thought. Q,13: 3]

[And a sign for them is the night. We remove from it [the light of] day, so they are [left] in darkness. Q,36:37] 

 

These innovatively crafted-distortions do not fit the doctrine of Maslahah” as well. Terms of the loans under Islamic financing OUGHT TO BE DICTATED by the “creditor”, not the “debtor” [Q, 2:282]

“And of everything We have created pairs: That ye may receive instruction” (Q, 51:49) {Pair may be ln a tangible form, in an intangible or conceptual form; such as—man/woman, day/night, taking/giving or good/bad, etc.}

“He to whom belongs the dominion of the heavens and the earth: no son has He begotten, nor has a partner in His Kingdom. He created everything and ordered them in due proportions” (Q, 25:2)

{Singularity (Monotheism) is exclusively Allah’s attribute; nothing else, could/would exist in singularity} Nauzubillah! 

 

Notes: appearing at the end of certain points, in the proceeding paragraphs, is the point of view of the author.

 

Riba was prohibited gradually in four stages via                                                                Q, 30:39, 4:161, 130:132 & 2:282.

Kinds of riba

Islamic discourse identifies three different types of riba: 1) riba al-Fadl (primarily related to sales transactions), 2) riba al-Nasiya (sales or debt involving deferment) and a variation of the previous two, 3) riba al-Jahliyyah.

Riba Al-Fadl is the excess over and above the loan paid in kind.  It lies in the payment of an addition by the debtor to the creditor in exchange for commodities of the same kind. The Shari’ah wishes to eliminate not merely the exploitation that is intrinsic in the institution of interest, but also that which is inherent in all forms of unjust exchange in business transactions.

Riba Al-Nasi’ah refers to the interest on loans; its prohibition essentially implies that the fixing in advance of a positive return on a loan as a reward for waiting is not permitted in Islam.

Riba Al-Jahiliyyah when a buyer/borrower did not pay his due after the stipulated time, the seller/lender would increase the price, and thus a higher principal amount, sometimes doubled (or more), would be imposed.

According to Ibn Abbas, one of the major companions of the Prophet and earliest of the Islamic jurists, and few other companions (Usama ibn Zayd, ‘Abdullah ibn Mas’udUrwa ibn Zubayr, Zayd ibn Arqam) “considered that the only unlawful riba is riba al-jahiliyyah.” (No textual/hadithic authority/basis cited)

 

Muhammad Nezatullah Siddiqi. In his book Riba, Bank Interest, and The Rationale of Its Prohibition [p. 41], offers a thorough work explicating the rationales of the prohibition of bank interests, and lists the following reasons justifying its prohibition: 1. Riba corrupts society. 2. Riba implies the improper appropriation of other people’s property. 3. Riba’s ultimate effect is negative growth. 4. Riba demeans and diminishes human personality. 5. Riba is unjust.

{These arguments are objectively scrutinized hereunder}.

 1) Riba corrupts society! 

Corruption studies or corruption-related literature does not identify interest anywhere as one of the determinants of corruption. Indeed, most of the Muslim-majority countries rank high in the Corruption Perception Index (CPI).11 

Siddiqi’s flawed logic can be identified by simply examining his first point – that riba corrupts society. While riba-based transactions are unjust and thus may have corrupting influence on society, but the corruption studies or corruption-related literature does not identify interest anywhere as one of the determinants of corruption. Indeed, most of the Muslim-majority countries rank high in the Corruption Perception Index (CPI).11 But corruption-related studies relating to these countries done by either non-Muslims or Muslims have never identified interest as one such determinant of corruption.

As we will see, Siddiqi’s enumeration is generally not much different from the earlier ones by Abul Ala’ Mawdudi and Dr. Yousuf Ali-Qaradawi (using Al-Razi’s arguments ad verbatim) and is as polemical as well as empirically unsubstantiated and untestable as ever. Only one rationale is identifiable from the Qur’an: exploitation/injustice (zulm): “If you do it not, Take notice of war from Allah and His Messenger: But if you turn back, you shall have your capital sums: Deal not unjustly, and you shall not be dealt with unjustly.” [la tazlimoona wa la tuzlamoon; [Q, 2:279] Hadith: – (Prophetic narrations) also does not provide in this context any specific rationale other than what is identified in the Qur’an.

Note: – 1) It does not, by any mean, means that CPI index or corruption-related studies absolve “riba” of its implications or represents an Islamic perspective in any contextual sense. Riba simply was not taken into account as a consideration. 

2) Injunctive (hukmi) verses, at times, may not necessitate any explanations, for these are/maybe above and beyond the scope of human reasoning and logic.

 

[In terms of the use of riba, Sudan is the strictest and Malaysia the most liberal state]

 

2) Improper appropriation of other people’s property.

Charging/taking an interest, here, implies appropriating another person’s property without giving him anything in exchange because one who lends one dollar for two dollars gets the extra dollar for nothing. Now, a man’s property is for (the purpose of) fulfilling his needs and it has great sanctity. According to the hadith, ‘A man’s property is as sacred as his blood.’ This means that taking it from him without giving him something in exchange is haram. [p. 265]

One can argue that, in trade, taking something from someone without giving something in exchange is haram (prohibited). However, the argument is misleading and erroneous. When a non-charitable transaction is involved, both the parties know what the lending and borrowing entail. The borrower is borrowing for some commercial or personal benefit and the lender is lending for-profit motive. In such a non-charitable context, the lender is giving up or foregoing the purchasing power for a specific period. In other words, the lender is “renting out” the purchasing power of his/her capital for a specific period at a cost; interest here constitutes “rent” that is paid by the borrower. The lender is getting paid (interest) for foregoing something; it is not something for nothing but quid pro quo!

Note: {Islam, in the first place, does not espouse the concept of non-charitable-loaning but charitable one—Qarzhasanathat may be administered by the state from the “Sadaqat” collected. Allah will destroy Riba (usury) and will grant increase, for Sadaqat..}     (Q, 2:276)

 

Time-value of money in Islam!

Islamic economics/finance literature generally denies that Islam recognizes the time value of money. [El-Gamal 2000, quoting Mawdudi and Al-Sadr]. “[I] in Shari’ah, there is no concept of the time value of money.” [Usmani, p. xvi] Some authors think that the time value of money as relating to sales (deferred sales, to be specific) is allowed in Islam, but that it is not the same kind of time value of money as in case of loans. [Saadallah; M. Akram Khan cited in Vogel and Hayes, p. 202] Others even suggest that there should not be any profit-motive on the part of Muslims, seeking service from Islamic Banks. Although, its equivalent is found in Murabaha, cost-plus financing in purchase and resale. It has been conveniently ignored that accepting the time value of money logically leads to the acceptance of interest. [Saeed, p. 95]

Note; 1) -It may be due to the reason that; the time is created and determined (finite); relevant only to the temporal realm, whereas the recompense for use/misuse of money is indeterminable (at, this stage; i.e. temporal level) and relevant to the non-local domain only.  The time-value of money, in the charitable transactions, therefore, would render utterly irrelevant!

2) – The question of the distinction between the nominal-value and the real value of money, due to inflation, has also not been addressed in Islamic economic literature. At present, there is no economy “without-inflation” {Inflation, in my view, is a derivative of the flawed global economic system; whereby mostly the investors and/or the manufacturers benefit; reflected in different countries at different levels, representing overall state of economy} 

 

3 & 4) Riba’s ultimate effect is negative growth. & Riba demeans human personality.

Supporting arguments.

Dependence on interest prevents people from working to earn money, since the person with dollars can earn extra dollars through interest, either in advance or at a later date, without working for it. The value of work will consequently be reduced in his estimation, and he will not bother to take the trouble of running a business or risking his money in trade or industry. This will lead to depriving people of benefits, and the business of the world cannot go on without industries, trade and commerce, building and construction, all of which need capital at risk. (This, from an economic point of view, is unquestionably a weighty argument.) [p. 265]

Counter arguments.

In modern times, commercial lending and borrowing usually do not take place involving an individual lender at a personal level. Rather, there are lending institutions that mobilize savings from individual and institutional savers/depositors and channel such savings to the borrowers. The lending institutions have to work hard to solicit and pool the savings. They also employ people for the purpose.

The primary source of banks’ lending is savings and demand deposits of the depositors. Demand deposits come from people of all sorts, irrespective of their financial status. A good part of the savers; who use a bank as a source of quick and safe-return instead of risky and arduous stocks and bonds markets are usually risk-averse, older and/or retired people. They want quick access to their savings with a guaranteed return on it. This class of savers consists of people of all ages and financial backgrounds – wealthy and not-so-wealthy, young and older/retired. Indeed, these people can’t be expected/forced to engage in risky investments or laborious-works to seek “earned” income!

 

5) Riba is Unjust.

Supporting Arguments: –

Permitting the taking of interest discourages people from doing good to one another, as is required by Islam. If interest is prohibited in a society, people will lend to each other with goodwill, expecting back no more than what they have loaned, while if interest is made permissible the needy person will be required to pay back more on loans (than he has borrowed), weakening his feelings of goodwill and friendliness toward the lender. (This is the moral aspect of the prohibition of interest.). [p. 266] 

Counter-arguments: –

This whole argument is contrary to the profit-motive, recognized in Islam. Unless we are talking about charities, these arguments would be misplaced and erroneous. This would also imply that people in interest-based societies have lesser goodwill toward others and may not be engaged in enough charitable acts. Is there any empirical corroboration behind such comparative observation?

Note; – [ In my view both, the pro and against, arguments are flimsy at the best. Profit motive sanctioned in Islam is through business dealings not through money-lending for a pre-determined period and profit. Islam, as mentioned earlier, does not espouse non-charitable lending]

 

Some [al-maslaha-al-mursala based] opinions/fatawa; issued by earlier religious figures are being vehemently propagated by some present religious figures with unabashed assertiveness. 

 

The point, a bone of contention; that has divided Muslim scholars is, whether riba (usury) and bank interest are to be considered the same/equivalent or distinct?

 

Equivalence Proponents.

One body of scholarly opinion defines riba to include not only interest but also transactions involving speculation, capital gains, monopoly, hoarding, and absentee rents, in other words, any appropriation of value for which an acceptable counter value is not forthcoming. The reader can easily read through and conceptualize the implications of using more and more restrictive definitions, in the limit (to borrow a mathematic term) equating riba simply with interest.

 

“All the schools of thoughts of Muslim jurisprudence hold the unanimous view that riba, usury and interest are strictly prohibited.” [Siddiqui, p. 15] Also see, Mabid Ali Al-Jarhi and Munawar Iqbal. “Islamic Banking: Answers to Some Frequently Asked Questions,” Islamic Development Bank, Occasional Paper No. 4, 2001. http://irtipms.iskandertech.com/OpenSave.asp?pub=92.pdf; Tariq Talib al-Anjari. “Islamic Economics and Banking,” http://islamic-world.net/economics/economic_banking_01.htm;

“The renowned Islamic scholar Dr. Yusuf Ali Qaradawi holds that the question of prohibition of interest is a settled issue and that ‘there is no provision left in it for any reformist to re-interpret and provide an excuse for stating anything otherwise’. He states that it is ‘an issue which has withstood the test of consensus (Ijmah) of ummah of the present day as well as of the past’.” [ Syed Thanvir Ahmed. “Attempt to Justify Interest an Exercise in futility,” http://www.islamicvoice.com/april.99/economy.htm.]

Abul Ala’ Mauwdudi defines riba as the amount that a lender receives from the borrower at a fixed rate of interest. {for a fixed time and transaction contingent on the excess on the principal}. The transaction would be usurious whether it is for productive-investment or private needs.[Mawdudi, 1997;164] The most explicit report of the Council of Islamic ideology (CII) says: “There is complete unanimity in all schools of thoughts in Islam that the term “riba” stands for interest in all its types and forms”

 

Non-Equivalence Proponents

Those who have argued against this equation, the Non-Equivalence School [Ahmed, p. 28], have not made their arguments in clear and convincing terms so that the common Muslims can decide for themselves. Thus, this discourse needs to continue more vigorously and engagingly.

Note: In my view, as also enunciated in the preface, verse 30:39 categorically settles the issue of non-equivalence of usury, riba or interest by stating “whatever you give in addition to loan amount”, is riba. Supported by a hadith narrated by Jabir, mentioned in Muslim and Tirmazi“Prophet cursed the receiver and payer of the riba, recorder and witnesses to the transaction. And said they are all alike” (in sinfulness)

 

Interest-free economies

Since there has not been any true interest-free, modern Islamic economy and a few places where it is being attempted, the Islamic financial institutions (IFI hereafter), are moving rather closer to the conventional banking practices.

Note: – Use of Interest regime (to control the demand and supply of the funds/liquidity levels; which in turn determines the cost of borrowing; seldom yields the desired results, due to several other factors at play) is the chief catalyst in the volatility of the world’s, almost all, interest-based economies! [Although the man-made  economic management system has gained a high level of sophistication, yet lacks the precision]

 

The primary source of an Islamic Economic system is the Holy Qura’an and Sunnah. Secondary sources include the followings: –

Ijtihad: – True Ijtihad is both the source and the legal instrument that allows a dynamism to be set in motion at the heart of Islamic law and jurisprudence—closely linked with Qura’an and Sunnah.

Ijmaa (Consensus): In its technical dimension, Ijmaa means the agreement of all competent jurists in any particular generation, acting as representatives of the community on a point of law. In practice, the Ijmaa acts as proof if there is no element of the Qur’an or the Sunna that makes it possible to decide on a case, and could in principle elevate a ruling based on probable evidence to absolute certainty.

Qiyas (Analogical reasoning): this technique consists of assigning, based on a common underlying characteristic, the legal ruling of an existing case found in the texts of the Qur’an, Sunnah and/or Ijmaa, to a new case whose legal ruling could not be deduced directly from the scripture and/or Sunnah. This ruling nevertheless ought to remain within the confines and spirit of the primary sources of Islamic law.

 

Misuse of the concept “IJMA’A”

It has been a common practice among Muslim scholars and jurisprudents to claim consensus (ijma) about almost anything they have given their juristic opinion on. The very use of the word ijma inspires awe among faithful Muslims. However, the existence of multiple schools of jurisprudence (fiqh) is not evidence of consensus, but the lack of it.

The reality is that there is not even a consensus on the definition of ijma.  Indeed, it is reported that Imam Ahmad ibn Hanbal, founder of one of the four orthodox schools (madhab) made a general assertion: “Whoever claims consensus is a liar.

Note; – The concepts, of hire-purchase and lending under Murabaha, seem to fall in the same category; for there are many scholars and Islamic Financial institutions, voicing against these financing modes.

 

Foundational work; a springboard for the current deviant practices, under the guise of Islamic Financing!

 

In the 1930s, Syrian scholar Marouf al-Daoualibi suggested that the Qur’an bans interest only on consumption loans, not investment loans, and in the 1940s Egyptian jurist, Al-Sanhuri argued that the Qur’an sought chiefly to ban interest on interest. A more extreme and recent example is the opinion of the mufti of Egypt, Shaykh Muhammad Sayyid Tantawi, who in 1989 declared that interest on certain interest-based government investments was not forbidden riba (because the gain is little different from the sharing of the government’s profits from use of the funds or because the bank deposit contract is novel), thus joining the thin ranks of prominent religious figures who have issued fatawa declaring clear interest practices permissible. This fatwa aroused a storm of controversy, with opposition from nearly all traditional religious scholars and warm praise from secular modernizers. Later he went even further, saying that interest-bearing bank deposits are perfectly Islamic, and more so than ‘Islamic’ accounts that impose disadvantageous terms on the customer. Laws should change the legal terminology used for bank interest and bank accounts to clarify their freedom from the stigma of riba. [Vogel and Hayes, p. 46]

 

Fatwa for sale

Owen Matthews, “How the West Came to Run Islamic Banks”, Newsweek [October 31, 2005] While the evolved orthodox position about riba was not necessarily tainted by worldly considerations, the contemporary IBF discourse does note “the debate on ‘fatwas for sale” … fatwa wars”, etc. [Warde, p. 227] It is important to note that the classical orthodox position revolved around riba and the modern, contemporary discourse revolves around not merely riba, but a riba-interest equation. The contemporary Shari’ah experts serving the IBF industry hardly have anything to say about the political tyranny, or concentration of wealth, involving the patrons of the IBF movement. [IBF—Islamic Banking and Finance].

 

Islamic Financial Instruments include: MusharkahMudarabahMurabahaMusawamah, Salam,Istisna’aTawarruqIjarah and Qard Hasana.    [Only the relevant financial instruments are discussed in detail]

 

Arguments against lease-purchase/lending.

According to Yousef, “the predominance of the murabaha represents a challenge to the very notion that Islamic finance would provide an alternative to interest-based conventional financial systems.” [p. 64] Siddiqi went much further to warn the Islamic finance industry: … we cannot claim, for an interest-free alternative not based on sharing, the superiority which could be claimed based on profit-sharing. What is worse, if the alternative in practice is built around predetermined rates of return to investible funds, it would be exposed to the same criticism which was directed at interest as a fixed charge on capital. 

 

It so happens that the returns on finance provided in the modes of finance based on murabaha, bay’ salamleasing and lending with a service charge, are all predetermined as in the case of interest. Some of these modes of finance are said to contain some elements of risk, but all these risks are insurable and are insured against. The uncertainty or risk to which the business being so financed is exposed is fully passed over to the other party. A financial system built solely around these modes of financing can hardly claim superiority over an interest-based system on grounds of equity, efficiency, stability and growth. [Siddiqi, 1983, p. 52]

 

It is noteworthy that, contrary to the popular perception of the believing Muslims, Murabaha, (leasing and lending), may not be, as generally claimed, quite Shari’ah-compliant. It is heavily criticized or repudiated by many Islamic scholars and by some Islamic financial institutions.

 

Why Western Institutions are swarming Islamic Banking?

Western interest in “interest-free” banking, is not because the West is convinced about the claimed superiority of Islamic finance/banking in general, and Islamic financial products in particular; but because they don’t find any substantive difference between conventional banking and the current practices of Islamic banking, which have shifted away from profit-loss sharing (PLS)/Risk-sharing-based transactions to Murabaha. It is a vast untapped lucrative market for them, with a clear edge in terms of credibility, experience and capitalization. These banks have found Mudaraba and Musharaka to be inoperable in the modern context. [Saeed, chapter “Murabaha Financing Mechanism,” pp. 76-95; Aggarwal and Yousef, p. 106; Vogel and Hayes, p. 7] Thus, they quietly disengaged themselves from risk-sharing, Musharaka and Mudaraba modes and engaged in Murabaha, instead.

 

Application of the Doctrine of Maslaha.

Maslaha is a very specific concept—in its definition, its levels, its types, and its conditions require that the ulama (religious scholars) constantly refer back to the revealed sources to be able to formulate judgments in conformity with the Qura’an and Sunnah, even when there is no specifically relevant text available. They must try—by carrying out a thorough and detailed study–to provide Muslims with (common good) new banking and financial instruments, guided by Islamic principles and in conformity with Sharia’a.

Presently, this concept is being used and also abused to justify all sorts of new fatawaeven some manifestly in contradiction with obvious proofs from the Qura’an and the Sunna, as in the case of rules concerning interest (riba), inheritance and lending under Murabaha.

Note: [A glaring example of “Tufian” approach, appearing below]

Imam Malik referred to the notion of istislah, which meant “to seek the good.” In his legal research, he, therefore, used the example of the companions—who formulated numerous legal decisions in the light of the common good while respecting the corpus of the sources—to justify the fact that “to seek the good” (istislah) is one of the fundamentals of the Sharia and so is part of it.

It is, however, Abu Hamid al-Ghazali who, with his strict codification, provided the clearest framework for tackling this question from his time to the present. In his Al-mustasfa min ilm al-usul, he states very precisely: “In its essential meaning, al-maslaha is a term which means to seek something beneficial [manfaa] or avoid something harmful [madarra].

What we mean by maslaha is the preservation of the objective [maqasid] of the Law [shar], which consists of five things: the protection of religion, life, intellect, lineage, and property. Whatever ensures the protection of these five principles [usul] is maslahawhatever goes against their protection is mafsada, and to avoid it is maslaha”.

Al-Ghazali, still referring to the broad meaning of maslaha, mentions three different types: al-daruriyyat (the imperative), a category which has to do with the five elements of maqasid al-sharia (here in the sense of the objectives of the Law) listed earlier; al-hajiyyat (the necessary, the complimentary), which has to do with the prevention of anything that could be a source of difficulty in the life of the community, without leading to death or destruction; and finally al-tahsiniyyat and al-kamaliyyat (the enhancing and the perfecting)*1, which concern anything that may bring about an improvement in religious practice. These three levels cover all that can be considered as the masali (common good) of the human being considered as a person and as a worshipper of God, and this categorization was hardly ever questioned in debate and polemic.

*1 {The only point which could be cited, while ignoring all other parameters, vaguely favoring financing under murabaha}

Ulama established a typology based on the degree of proximity of al-maslaha to the sources. If al-maslaha is based on textual evidence (i.e., a quotation from the Qur’an or the Sunna), it is called maslaha mutabara (accredited), and it must necessarily be taken into account. If, on the other hand, the maslaha invoked is contradictory to an undisputed text (nass qati), it is called mulgha (discredited) and cannot be taken into account. The third type occurs when there is no text: the Qura’an and the Sunna do neither confirm nor reject a maslaha that became apparent after the age of Revelation. A maslaha of this type is call mursala (undetermined), for it allows the “Ulama” to use their judgment and personal reasoning to formulate a legal decision in the light of the historical and geographical context; using their best efforts to remain faithful to the commandments and to the “ letter and spirit” of the law.

 

It is this last type that has given rise to much debate and polemic (the analysis is beyond the scope of this study). Suffice it to say here that the main cause of disagreement was the fear, on the part of those opposed to the very concept of al-maslaha al-mursala, that such a notion, with such broad scope, might then allow the ulama to formulate regulations without reference to the Qur’an and the Sunna based on exclusively rational and completely free reasoning, all in the name of a remote hardship or “an anticipated difficulty  Most ZahiriteShafaiite and Malikite ulema did not recognize al-maslaha-al-mursala, for it does not refer back to the sources—as a legal proof; they saw it as a specious (Wahmiyya) proof.

 

This was the very same instinctive fear in an approach that is although purely rational but disconnected with the Law; that pushed Al-Ghazali to restrict work on al-maslaha to the area of the application of qiyas (analogy), which, of its nature, requires a close link with the text for the deduction of the cause (illa) on which analogical reasoning rests.

Note: – Hire-purchase and lending under Murabaha, therefore, contravenes the second rule of maslaha as well as the third rule, by not fulfilling the “referring back to the source” requisite. Hence being spurious (whamiyya) in nature, becomes clearly impermissible!

 

Famous fourteenth-century Hanbali jurist–Najm al-Din al-Tufi– ended up giving al-maslaha priority over texts from the Qur’an and the Sunna; which, according to him, should be applied, according to Mahmasani, only–“to the extent that the common good does not require anything else” 

 

Currently, we see very strange “modern Islamic legal decisions” based on “modern maslaha-al-mursala” that are manifestly contradictory to the sources. The misuse of al-maslaha al-mursala thus sometimes seems to justify the strangest behavior, as well as the most obscure commercial dealings, financial commitments, and banking investments, under the pretext that they protect, or could or should protect, “the common good.”

 

Common good 

Famous 14th Century renowned scholar of Grenada, Al-Shitabi, first of the proponents of the doctrine of al-maslaha-al-mursal who stipulated the precise conditions for “common good” –to be considered as a reliable judicial source, restricting its application `preventing ulema from resorting to maslaha without justification. There is a general agreement of the scholars (both, for and against al-maslaha-al-mursala) on the precise definitions stipulated by Al-Shitabi for “common good”

Without going into too much detail, we may summarize the three generally recognized main conditions for situations when it is sure that no text has been enunciated:

  • The analysis and identification must be made with serious attention so that we may be sure that we have before us an authentic (haqiqiyya) and not an apparent or spurious (wahmiyya) The scholar must reach a high degree of certainty that the formulation of an injunction will avoid difficulty and not do the opposite and increase problems in the context of the Islamic legal structure.
  • The maslaha must be general (kulliyya) and be beneficial to the population and society as a whole, and not only to one group or class or individual.
  • The maslaha must not be in contradiction to or conflict with an authentic text from the Qur’an or the Sunna. If it were, it would no longer be a maslaha mursala but would be a maslaha mulgha.

 

What is clear from the above three conditions that it is the supremacy of the Qur’an and the Sunna over all other references and legal instruments. 

 

Dr. Yusuf Ali Qaradawi rightly recalls, taking up the ideas of al-GhazaliIbn al-Qayyim, and al-Shitabi, that everything found in the Qur’an and the Sunna is, in itself, in harmony with “the good of humankind” in general, for the Creator knows and wants what is best for human beings, and He shows them what they must do to achieve it. We find in the Qur’an, referring to the revealed message: “[the Prophet] who will enjoin upon them the doing of what is right and forbid them the doing of what is wrong, and make lawful for them the good things and forbid the bad things of life, and lift from them their burdens and the shackles that were upon them [aforetime]”

“They ask you about wine and gambling. Say, “In them is great sin and [yet, some] benefit for people. But their sin is greater than their benefit.” And they ask you what they should spend. Say, “The excess [beyond needs].” Thus, Allah makes clear to you the verses [of revelation] that you might give thought”. [Q, 2:219]

 

If the conditions stipulated for common good are, manifestly proclaimed (qati al-thubut wa-qati al-dalala) in the Qur’an and/or the Sunna, they must be respected and applied in the light of an understanding of the whole body of the objectives of Islamic teaching, maqasid al-Sharia.

 

“And We did not send before you any messenger or prophet except that when he spoke [or recited], Satan threw into it [some misunderstanding]. But Allah abolishes that which Satan throws in; then Allah makes precise His verses. And Allah is Knowing and Wise”. [Q, 22:52]

 

 

The author earnestly hopes and prays, that this piece will provide clarity to the people, on the issue of “RIBA” {as promised by Allah}, and help them choose the right path. InshaAllah.

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